Connecticut Fire Ins. Co. v. Williams
| Decision Date | 31 December 1959 |
| Citation | 9 A.D.2d 461,194 N.Y.S.2d 952 |
| Parties | CONNECTICUT FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. Dewitt C. WILLIAMS, Sr., Betty Stanton and Betty Seitz, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse (Raymond W. Hackbarth, Syracuse, of counsel), for plaintiff-appellant.
Bruce G. Dean, Ithaca, for defendants-respondent Williams.
John LoPinto, Ithaca, for defendants-respondents Stanton and Seitz.
Before FOSTER, P. J., and BERGAN, GIBSON, HERLIHY and REYNOLDS, JJ.
The appellant issued a policy of automobile liability insurance to the respondent Williams through one W. Eugene Dennis, its agent in Ithaca, which purported to cover a 1950 Studebaker from January 26, 1957 to January 26, 1958. Williams' account had been transferred by another agent to Dennis in the summer of 1956 and at that time he was insured by another company under the Assigned Risk Plan. Late in February, 1957 Williams went to the office of Dennis and had him change the policy coverage to a 1953 Chevrolet. The premium for the policy had not been paid at that time and Dennis testified that he continued to bill Williams until April, 1957 when he turned it over to a collection agency but that the bill was never paid. In December, 1957 Dennis received a renewal policy from the appellant for Williams. He testified that he then tried to contact Williams by phone and by going to Newfield on two occasions without success. Williams had moved from Newfield to Ithaca between December, 1956 and February, 1957 and although he notified the Motor Vehicle Bureau and left a change of address at the Newfield Post Office he did not notify Dennis of the change. On January 17, 1958 Dennis returned the renewal policy to the appellant marked 'Cancelled Flat 1/17/58 Not Taken Ret. Prem.', this meaning that the insured did not want the policy renewed. The Commissioner of Motor Vehicles was notified by Dennis that coverage of the 1950 Studebaker was terminated as of January 31, 1958 and the appellant sent a corrected notice stating the termination date as January 26, 1958.
While driving the 1953 Chevrolet on March 3, 1958 Williams had an accident and the respondents Stanton and Seitz, who were passengers in the car, were injured. The appellant instituted an action for declaratory judgment against Williams, Stanton and Seitz to determine whether it is obligated to defend and indemnify Williams as to the claims arising from the accident. Williams counterclaimed for a declaratory judgment. The court below held that there was a unilateral failure to renew by the appellant so that its failure to send a notice of termination to Williams under section 93-c of the Vehicle and Traffic Law effectuated a continuation of the insurance. The appellant's complaint against Stanton and Seitz was dismissed with costs and Williams counterclaim was granted with costs.
Section 93-c provides that no contract of insurance or renewal thereof shall be terminated by failure to renew by the insurer until 20 days after a notice of termination is mailed to the insured. It is admitted that no such notice was mailed to Williams but the appellant argues that there was not here a failure to renew by the insurer. As the appellant points out, renewal is a bilateral transaction involving both offer and acceptance. However, no offer was made to Williams since Dennis never contacted him concerning the renewal and as the court below pointed out there were reliable means available which were not used. Although a perfectly valid reason for failing to renew was available, the non-payment of premiums, this is not the issue here and it cannot be used...
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